IN RE SOUTHERN AND EASTERN DIST. ASBESTOS

IN RE SOUTHERN AND EASTERN DISTRICT ASBESTOS LITIGATION. THIS DOCUMENT RELATES TO ALFRED MARTINO.

The opinion of the court was delivered by: Whitman Knapp, District Judge.

We have before us several in limine motions asking that we
rule on the admissibility of certain documents that the
plaintiff has unearthed either from the two moving defendants'
files or in other circumstances which might reasonably lead one
to believe that at some point they came to a particular
defendant's attention. These documents are all offered to show
that such defendant failed to heed warnings purported to be
conveyed by the document or documents at issue; and that
punitive and other damages should therefore be assessed against
it. We are not the first court to rule on their admissibility,
and, if the number of asbestos actions now pending against
these particular defendants is any indication, we will not be
the last.

Specifically, defendant Eagle-Picher has moved for the
exclusion of the Spencer Memorandum (and the related testimony
of Robert Bockstahler), the Bureau of Mines documents, the
Harrington Letter, and the Aber Report. Defendant
Owens-Corning Fiberglas has moved to exclude the Saranac Lake
Study documents. For reasons that follow, we admit the Spencer
Memorandum, the Harrington Letter and the Aber Report, and
exclude the Bureau of Mines and Saranac Lake Study documents.

The Spencer Memorandum and the Related Bockstahler Testimony.

Although the facts surrounding the Spencer memorandum and
the related Bockstahler testimony are relatively complex,
those necessary for deciding this motion are essentially
simple. The memorandum in question — which appears on its face
to be privileged and which for present purposes we presume not
to have been knowingly and voluntarily disclosed to any third
party — purports to be a lawyer's summary of responses of one
Dr. Kenneth Smith on February 19, 1964 to various inquiries
concerning the hazards of defendant Eagle Picher's insulation
plant. The document makes clear that Dr. Smith, on the
defendant's behalf, had conducted a thorough examination of the
plant and had reached the definite conclusion that the
defendant's "cement operation, or any operation involving . . .
asbestos would constitute an occupational hazard."

In 1982, the document and its contents became known to one
Robert Bockstahler. According to his deposition testimony in
another asbestos case (the "related Bockstahler testimony"),
he was instructed by various lawyers acting on defendant's
behalf that the document was covered by the attorney-client
privilege and that he should never reveal its existence (let
alone his knowledge of its content) to anyone. Despite these
limiting instructions, he was on numerous subsequent occasions
designated by the defendant as the appropriate person to
testify on its behalf in asbestos litigations. On each such
occasion, he testified (contrary to his obvious knowledge)
that the company was not aware of the dangers precisely
described by Dr. Smith.

a failure to produce the document while allowing
a witness to continue to give inaccurate
testimony which can be easily corrected and
explained by the document effectively distorts
the search for truth and constitutes a fraud upon
the parties, the witness, and the Court.

Id. at 17-19 (emphasis in original). We cannot but agree with
the Master in Chancery and conclude that any privilege had been
waived long before the onset of this litigation, and that the
document and the related Bockstahler testimony should be
admitted.

With respect to the remaining documents, each objecting
defendant asserts — in one way or another — that the document
under attack should be excluded either as "irrelevant" under
Federal Rule of Evidence 401 because it has no "tendency to
make the existence of any [relevant] fact . . . more probable
or less probable than it would be without the evidence" or
under Rule 403 on the ground that its "probative value is
substantially outweighed by the danger of unfair prejudice."

In weighing these contentions, we take into account several
considerations. First, a corporation can only act through
individuals empowered to act on its behalf. Consequently,
before a document can be deemed relevant under Rule 401, there
must be some indication that would lead a court to conclude
that the document in question had at some time come to the
attention of some individual empowered to act. Second, there
must be some indication that such individual — at the time he
or she saw the document — could rationally be assumed to have
related it to a potential danger to a person in the decedent's
position. Absent these considerations, it clearly would be
unfairly prejudicial to permit the plaintiff — in search of
punitive damages and other relief — to assail the jury with
miscellaneous unrelated warnings of doom accumulating over the
life of the defendant corporation.

The Bureau of Mines Documents

According to a letter dated March 11, 1932 from a "Surgeon
in Charge" in the U.S. Bureau of Mines Cooperative Clinic in
Picher, Oklahoma to the Bureau's Chief Surgeon in Washington,
D.C., one Mr. Erban Mabon, Safety Engineer of the defendant
Eagle Picher Co., had urgently requested the Bureau to make a
safety examination of defendant's plant in Picher. In
consequence of this urgent request, the Surgeon in Charge
asked the Chief Surgeon to forward the report to the defendant
"at the earliest possible date, as they are anxious to receive
it."

In light of the foregoing, absent some indication that Mr.
Mabon was the "seventh son of a seventh son" or displayed
other evidence of supernatural powers, no court or jury could
rationally come to the conclusion that he should or even could
have foreseen that some years down the pike it would be
discovered that asbestos was dangerous not only to those
engaged in the manufacture of asbestos products, but also to
ultimate users of those products. It would therefore be absurd
to permit a jury to award damages — let alone punitive damages
— against his employer because of his understandable lack of
foresight.

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